Wednesday, March 28, 2012Last Update: 10:58 AM PT

Gmail Users Get Help to Stay Masked Before SEC

(CN) - A group dedicated to online privacy hopes to shield anonymous Gmail users whom the Securities and Exchange Commission have subpoenaed as part of an investigation into a coffee company connected to the late reggae artist Bob Marley. Jammmin Java, which is chaired by Bob /Marley's son Rohan, attracted regulators' scrutiny when its share prices rose and fell within a short span of time from late 2010 to early 2011. Investigating the possibility of a pump-and-dump scheme, the SEC subpoenaed three Gmail users known only by their email addresses. The agency claims that, "the increase in Jammin Java's share price occurred notwithstanding the fact that Jammin Java's public filings during that time period reflected that Jammin Java was a shell company that had generated no revenues and had an accumulated deficit of $511,760." It also alleges that the fluctuating stock prices coincide with Jammin Java's "materially misleading" online newsletters. After the SEC issued the first subpoena in June 2011 to identify the individual behind marketingacesinc@gmail.com, a motion to quash appeared anonymously two months later. U.S. District Judge Charles Breyer dismissed the motion, leading the San Francisco-based Electronic Frontier Foundation (EFF) to intervene on appeal. "In the immediate case, the Securities and Exchange Commission seeks to obtain the identities of anonymous speakers based not on any evidentiary showing but on its own conclusory assertions that the information is needed to investigate misconduct," according to the amicus brief authored by EFF staff attorney Matt Zimmerman. "The SEC has not explained why it has targeted the Gmail account holders, nor has it even identified any newsletters in question, much less link the users to any allegedly illegal activities," Zimmerman added. "The right to engage in anonymous speech is protected by the First Amendment, and "the SEC cannot unmask anonymous online speakers absent an evidentiary showing supporting a compelling state interest," the brief states. "In rejecting the plaintiffs-appellants' motions to quash, and permitting the agency to simply posit arguments in support of its investigation, the District Court effectively endorsed a standard by which the SEC can pierce the anonymity of online speakers based entirely on the speculation of the agency," Zimmerman wrote. Breyer allegedly misstated minimal requirements imposed under the summary-judgment standard used to evaluate anonymity rights in the context of online speech. "The District Court's interpretation of the standard, apparently one in which the issuing party would have to provide evidence sufficient to prevail upon an affirmative summary judgment motion, is simply incorrect and sets the investigatory bar far higher than the standards suggested by either appellants or prior case law," the brief states. The EFF further noted that, "while the SEC's investigation may (or may not) eventually prove fruitful and its theories prove correct (or not), none of the information provided by the SEC meets the required First Amendment evidentiary threshold." "The government declines, for example, not only to include the 'online newsletters touting Jammin' Java's stock' on which the investigation appears to be based for the Court to review, but also to identify when they were published, or what the specific allegedly suspicious contents were," Zimmerman added. "Similarly, it fails to explain with any specificity what John Doe has to do with the matter. ... The SEC has identified a series of disparate facts and has, without explanation or detail, added its unsupported conclusions. Such naked conclusions hardly amount to evidence indicating a rational relationship to a compelling governmental interest." "Anonymity receives the same constitutional protection whether the means of communication is a political leaflet or an Internet message board," the brief concludes. It is not arduous for the government to support its subpoena with evidence, as required by the First Amendment, according to the EFF. 'As courts have explained in cases addressing attempts to obtain online identity information through the use of discovery subpoenas, such a requirement is designed to provide a modicum of protection to a speaker whose First Amendment right to anonymity would be irrevocably lost once his or her identity was disclosed," the brief states.